The Buck Stops Here

Thursday, May 31, 2007

Tom Smith on Ruth Bader Ginsburg

No one is quite as funny as Tom Smith at discussing legal matters, and he is in rare form in discussing a recent New York Times article lauding Ruth Bader Ginsburg for reading a few recent dissents from the bench (rather than merely letting them appear in print):

I make no claim to be hip to the profundities of the jurisprudence of the U.S. Supreme Court. But can I be the only one whose intelligence is insulted by this attitude of, oh, golly, the Cahart decision is just politics, not law. You start with Roe v. Wade, a decision that sprang, like Athena from the brow of Zeus, out of Justice Blackmun's none too cerebrally blessed head, a decision so appallingly made up that those of us who went to law school in the '80's had to suffer through years of tendentious theories of "non-interpretive judicial review," that is, theories about how making it up isn't really quite exactly making it up, though, in the alternative, it is OK to make things up if you really have to, and then, when decades later, the Court decides, with at least some guidance from Congress, to say, well, abortion is OK, but you know, if it's a baby already, and half-way out, and Congress says so, then, well, you shouldn't just, you know, squish its little head, we have to sit here and listen to the paroxysms of indignation that this is politics, not law. That we run the risk of making poor, old, apolitical, white glove clad Justice Ginsburg descend from the Platonic heaven of pure juridical dispassion, and read her dissent from the bench. Oh, my, we've done it now.

The Bush administration said Tuesday it will fight to keep meatpackers from testing all their animals for mad cow disease.

The Agriculture Department tests fewer than 1 percent of slaughtered cows for the disease, which can be fatal to humans who eat tainted beef. A beef producer in the western state of Kansas, Creekstone Farms Premium Beef, wants to test all of its cows.

Larger meat companies feared that move because, if Creekstone should test its meat and advertised it as safe, they might have to perform the expensive tests on their larger herds as well.

The Agriculture Department regulates the test and argued that widespread testing could lead to a false positive that would harm the meat industry.

A federal judge ruled in March that such tests must be allowed. U.S. District Judge James Robertson noted that Creekstone sought to use the same test the government relies on and said the government didn't have the authority to restrict it. - A federal judge ruled in March that such tests must be allowed. The ruling was scheduled to take effect June 1, but the Agriculture Department said Tuesday it would appeal, effectively delaying the testing until the court challenge has played out.

Hilzoy goes on to say:

I fail to see what the government is doing in this case to start with.Rick Perlstein (note: Perlstein uses 'E. coli conservative' to refer to conservatives whose commitment to small government extends to things like food safety):

"First, observe the contempt for liberty. When E. coli conservatives say self-regulation is preferable to government, they're even lying about that. Second, observe the contempt for small business. When a small company want to - voluntarily! - hold its product to a higher standard, the government blocks it, in part because bigger companies have to be protected from the competition, in part because a theoretical threat to the bottom line (false positives) trumps protection against a deadly disease."

As I said above, I can see a theoretical case against widespread testing for some things, if they're rare enough and the costs of missing cases of those things are low. But the way to do that, I would have thought, is not for the government to ban testing; it's for firms to get together and adopt some sort of common policy. It is not the government's job to protect companies' profits, especially not by preventing them from testing for a fatal, incurable neurodegenerative disease.

A few points:

1. The reason the government is "in the case to start with" is that Creekstone Farms filed a lawsuit against the Department of Agriculture.

2. The bolded text above is false, at least as concerning the lawsuit, and shows the danger of trusting anything that a journalist says about a legal proceeding. (I've discussed this before).

In the lawsuit, the government did not make an argument about "false positives." To the contrary, the government's brief in support of a motion for summary judgment (as well as its other briefs) argued that BSE tests would provide a overwhelming number of false negatives. Here's a long quote from that brief:

As discussed previously, the vast majority of cattle that are processed into beef in the United States are less than 24 months old. See Ferguson Decl. ¶ 5. However, the average incubation period for the BSE disease is five years, meaning that on average it takes five years from the date a cow is infected with BSE for the cow to show any outward clinical signs of the disease, such as abnormal posture, inability to walk, or other impaired coordination. See id.

Given that the earliest point at which current BSE testing methods can detect a positive case of BSE is only two to three months before a cow would demonstrate clinical signs of the disease, see id. ¶ 10; Rippke Decl. ¶ 9, testing all young normal-looking cattle for slaughter, as proposed by plaintiff, is not practical and offers no animal health or food safety value because testing a young infected animal with the current methodology would likely produce false negative results, Ferguson Decl. ¶ 10.23. Accordingly, when used to diagnose the presence of BSE in all cattle for slaughter, as proposed by plaintiff, BSE test kits are worthless and subject to regulation under [Virus-Serum-Toxin Act].

The false negative argument was also made in a 2005 rule from the USDA, which found universal testing to lack any scientific justification:

We understand the interest expressed by some commenters in testing certain cattle for slaughter. However, no live animal tests exist for BSE and the currently available postmortem tests, although useful for disease surveillance (i.e., in determining the rate of disease in the cattle population), are not appropriate as food safety indicators.

We know that the earliest point at which current testing methods can detect a positive case of BSE is 2 to 3 months before the animal begins to demonstrate clinical signs. We also know that the incubation period for this disease–the time between initial infection and the manifestation of clinical signs–is generally very long, on the average of about 5 years. Accordingly, we know there is a long period during which, using the current methodology, testing an infected animal that has not demonstrated clinical signs of the disease would, incorrectly, produce negative results.

* * *

Testing of individual animals, especially if it is performed on clinically normal animals at slaughter, is not in itself an effective risk mitigation measure for protecting public health. The purpose of a surveillance program is to gauge the level of BSE prevalence. This can be achieved through targeted sampling, as is being carried out in the United States and Canada.

For these reasons, we do not consider the testing at slaughter of every bovine over 20 months of age, or the testing of every bovine at slaughter, to be scientifically justified or meaningful in the context of either human or animal health. Making this a criterion for minimal-risk regions would not contribute to human or animal health protection beyond the protection achieved by a statistically and epidemiologically valid surveillance plan, coupled with the risk mitigations specified in this rule.

3. Why is the government taking this position? I see no evidence, as of yet, that concern for "protect[ing] companies' profits" has anything to do with this. Instead, this seems to be a perfectly normal case of the liberal regulatory state protecting its turf.

To briefly summarize the USDA's argument:

A. The Virus-Serum-Toxin Act provides, in relevant part, that no one can sell "any worthless, contaminated, dangerous, or harmful virus, serum, toxin, or analogous product intended for use in the treatment of domestic animals."

B. The Act also allows the USDA to issue rules and regulations to enforce this prohibition.

C. According to the USDA's official interpretation in 9 C.F.R. 101.2, an "analogous product" includes substances that "act through the stimulation, supplementation, enhancement, or modulation of the immune system or immune response; or . . . through the detection or measurement of antigens, antibodies, nucleic acids, or immunity." That includes the BSE test, among many other things.

D. Under that same regulation, diagnostic tests are part of "treatment."

E. Under official USDA policy, "the sale of BSE test kits is restricted to laboratories approved by State and Federal animal health officials for use in APHIS’s program of BSE surveillance." This is why Creekstone had to ask permission from the USDA to buy BSE test kits in the first place.

F. But because so many false negatives would result from testing young animals, using tests in that way would be "worthless" under the statute.

Of course, I have no idea whether the BSE test is useful and when, but if the USDA is right that the test is completely worthless when performed on live young cattle, then its overall argument doesn't strike me as crazy or ideological. Indeed, the Virus-Serum-Toxin Act -- a piece of progressive legislation passed in 1913 -- requires the USDA to prevent such "worthless" products from being sold. Again, it's just the liberal regulatory state in action.

By the way, the federal district judge granted summary judgment to Creekstone because, while he agreed with just about all the steps in the USDA's argument, he thought it contradictory in one respect:

It is unnecessary to reach the question of whether BSE test kits are “worthless,” because their use may not be regulated under the VSTA unless they are both “intended for use in the treatment of animals” and “worthless.” The government may indeed be right that the tests are “ineffective, misleading, and essentially worthless . . . when used, as proposed by plaintiff, to diagnose the disease in all slaughter-aged normal-looking cattle.” Def.’s Mem. at 42. But. . . let it be noted that the government cannot have it both ways: the test kits cannot be both “used for treatment” and “worthless.”

P.S. The USDA's rule linked above, was upheld by the Ninth Circuit, in an opinion written by Clinton-appointed judge Wallace Tashima, and joined by Clinton appointee Richard Paez:

Finally, the district court held that it was arbitrary and capricious for the agency not to require all Canadian cattle to be screened for BSE, because the screening test could identify some animals with BSE that would not otherwise be identified. R-CALF I, 359 F. Supp. 2d at 1069. The Final Rule, however, contains a lengthy comment in which USDA responded to requests for testing of Canadian cattle. Final Rule, 70 Fed. Reg. at 475-76. USDA explained that, because testing can only detect the disease two to three months before a cow starts demonstrating clinical signs of the disease, a cow may be infected and thus produce a false negative on a test. Id. Because of the long incubation period of BSE, and the relatively short window in which non-targeted testing is effective, the USDA did not consider testing to be a “food safety” measure. Id. Rather, testing was best used to determine if BSE exists in a country and to determine its prevalence — goals that can both be achieved by targeted testing of animals with clinical signs of BSE. Id.

Over the past few years, USDA’s policies regarding BSE testing have been subject to a high degree of criticism. See, e.g., Mad Beef Policy, Los Angeles Times, Jul. 1, 2005; McGarity, supra, at 337-40. These criticisms have generally focused on USDA’s refusal to allow voluntary testing of cattle, rather than its refusal to require mandatory testing of Canadian cattle. Although these criticisms are not without their valid points, we do not believe that they are so powerful as to render USDA’s testing policy invalid. USDA’s approach to BSE testing — that, until better tests are developed, prophylactic measures such as the feed ban and SRM removal are the best methods of protecting human and animal health — is defensible. While its wisdom may be subject to debate on the merits, its choices are not so lacking support in the administrative record as to be “arbitrary and capricious.”

P.P.S. Hilzoy began the post, "Just when I think I've heard it all, this administration manages to surprise me again." Even if it were true that the USDA was just trying to protect large beef producers, this wouldn't really be that surprising. See George Stigler's "Theory of Economic Regulation" article.

P.P.P.S. Could the USDA have been worried about market protection despite the fact that its briefs never mentioned such a theory? Possibly, but again, if the USDA is right about the efficacy of the test, then this concern would have been rational. If a company uses a "worthless" test that will produce only "false negatives" (given the long latency period of the disease and the age at which cattle are slaughtered), then it would be false advertising for a company to claim that this worthless test made its beef any safer. Of course, that may be why the district judge said that this whole case may be more a matter for the FTC.

P.P.P.P.S. Why are false negatives so different from false positives here? If testing tended to over-diagnose mad cow disease, yes, there would be false alarms, but that would be from erring on the side of safety. But if widespread testing here would provide false negatives, it would not increase or err on the side of safety. Quite the contrary: Testing would provide a false sense of security, because it would overlook cows that might actually have the disease.

P.P.P.P.P.S.: Maybe the AP wasn't totally crazy here. I just noticed a footnote in the district court's order that says this: "Of greater concern is the possibility that private testing could produce a false positive result, which might triggerunnecessary public alarm. USDA has asserted this possibility as a reason to avoid private testing." Here's the thing, though: The court doesn't cite any filing or rule in which USDA made this argument, and I could find no references at all to "false positive" in any of the government's briefs. Maybe a USDA lawyer mentioned this offhand at oral argument. In any event, the "false negative" point was definitely the USDA's main argument.

Tuesday, May 29, 2007

Worth Reading

Worth reading:

1. Eric Hanushek eviscerates some consultants who make wildly optimistic predictions in school finance cases.

2. A homeschool blogger notices some frivolous conversations. Reminds me of what Rod Dreher recently said about the (wonderful) policy that his son's school has adopted: "I've mentioned before how a minor policy of the school -- no talking about pop culture on campus -- has been a godsend to families like ours, who are trying to raise our kids to learn to love good books and movies and art instead of existing on a diet of junk food."

Saturday, May 26, 2007

Hitchens v. Wilson

The Appropriate Metaphor for Parenthood

Some people think children are like little lumps of clay, waiting for their parents to lovingly craft them into wonderful human beings.

Me, I think parenthood is more like this: You wake up one day, and to your shock you've been strapped to the back of a wildly galloping stallion. Ahead you can see cliffs in one direction, a pit of quicksand in another, and a sign reading, "Danger: Unexploded Mines." Your desperate hope is that you can get hold of the reins and give the stallion just a bit of guidance before it bucks you off.

An extension of this argument is that excessive practice will also drive out understanding. This criticism of practice (called "drill and kill," as if this pejorative slogan provided empirical evaluation) is prominent in radical constructivist writings. Nothing flies more in the face of the last twenty years of research than the assertion that practice is bad. All evidence, from the laboratory and from extensive case studies of professionals, indicates that real competence only comes with extensive practice. By denying the critical role of practice, one is denying children the very thing they need to achieve competence.

Tuesday, May 22, 2007

Old Stereotypes

I find it interesting that in the 19th century, blacks used to stereotype whites as incompetent, lazy, unable to do anything for themselves, etc. For example, there was a saying about plantation whites: “It’s a poor dog that won’t wag its own tail.”1 Then, according to one popular story (probably apocryphal), an elderly black man “noted whites coming out of the courthouse, where a meeting had been held. He stopped one of the whites and asked him, ‘Whut you white fokes doin’ in dar? Whut you plottin’ ‘bout now?’ When told they were planning to bring more white people into the South, the black looked very dubious. . . . The white man insisted on knowing why he objected to more white people. ‘Cause we Negroes is got all de white fokes hyeah now dat we kin support!’”2

Sunday, May 20, 2007

Tyrannosaurus Rex -- a hopper?

A question that just occurred to me:

Three animals that tend to have huge hind legs and smaller front legs are: frogs, kangaroos, and Tyrannosaurus Rex. Frogs and kangaroos often get around by leaping on the two hind legs. Did the T-Rex do that too? Must have been quite a sight.

Wednesday, May 16, 2007

Kazuhito Yamashita

For a long time, I was aware of Kazuhito Yamashita, a Japanese classical guitarist who made quite a stir in the 1980s when he released recordings of solo guitar transcriptions of such pieces as Dvorak's New World Symphony, Stravinsky's Firebird Suite, and Musorgsky's Pictures at an Exhibition.

Thanks to YouTube, I found three videos of Yamashita playing the latter piece live, I think in 1984 or so. It's the most jaw-dropping performance I've ever seen on classical guitar.

Part I:

Right around 4:07, he does this left-hand trill combined with jumping up to play a melody on the upper frets. Amazing.

Part II:

At the beginning -- I've never seen left-hand shifts that are so fast. Then at 1:02 he speeds up!!! What a jerk.

There's an very impressive arpeggio effect at 2:19 and following --- he somehow does this super-fast arpeggio and then brings out a melody with his middle finger.

Then there's an amazing movement at 8:13. Notice that at 8:47 to 8:50 he's throwing in some right-hand harmonics amongst all the other blazingly fast stuff!

Part III:

In this one, he starts out with this tremolo effect where he's sweeping one finger (sometimes the first finger, sometimes the pinky!) back and forth over the first string really fast, all while playing chords with his thumb. I've tried this, and it just seems impossible.

Then at 2:12, he starts on a movement that has some incredibly fast scales and repeated notes, such as at 4:40 or so. I've never heard another classical guitarist who could play quite that fast. Again, if you look closely, he's using his pinky as part of the scales.

There's also a mind-bogglingly difficult section at about 7:06, with a melody taking place at the same time as some repeated notes. At 7:26 he does this interesting right hand effect that creates this shimmering sound.

To sum up: It's a bit insane to play such an ambitious piece on the solo classical guitar. But whenever I watch Yamashita play, I keep having the same reaction that I myself (as a classical guitarist) have often gotten from people who have never heard classical guitar before: "I never knew a guitar could do that."

Also, a new journal that I can't wait to start getting is the Journal of Human Capital. The editorial board is a virtual Hall of Fame for current economists -- Acemoglu, Becker, Glaeser, Heckman, Kevin Murphy, and more. Wow.

Tuesday, May 08, 2007

Racial Conflict in Little Rock?

Via the Corner, here's a very odd story from the New York Times, that tries to generate racial conflict where none seems to exist:

Fifty years after the epic desegregation struggle at Central High School, the school district here is still riven by racial conflict, casting a pall on this year’s ambitious commemorative efforts.

Roy Brooks, the superintendent of schools in Little Rock, Ark., in his office. Mr. Brooks has received criticism and support for cutting jobs and closing some schools. In the latest clash, white parents pack school board meetings to support the embattled superintendent, Roy Brooks, who is black. The blacks among the school board members look on grimly, determined to use their new majority to oust him. Whites insist that test scores and enrollment have improved under the brusque, hard-charging Mr. Brooks; blacks on the board are furious that he has cut the number of office and other non-teaching jobs and closed some schools.

The fight is all the more disturbing to some here because it erupted just as a federal judge declared Little Rock’s schools finally desegregated, 50 years after a jeering white mob massed outside Central High to turn back integration.

In 1957, the fight was over whether nine black students could attend an entirely white high school. Now it is over whether the city’s black leaders can exert firm control over the direction and perquisites of an urban school district in the way that white leaders did for decades. When Mr. Brooks, who declined a request for an interview, cut 100 jobs, he saved money but earned the fierce ill will of many other blacks, who see the district as an important source of employment and middle-class stability.

On its face, this story doesn't seem to be about "racial conflict," which I would define to mean not "any conflict on which black people happen to have an opinion" but "conflict specifically about the issue of race."

I find it troubling that journalists seem to think that every conflict in Little Rock has to be shoehorned into the narrative of what happened in 1957. In 1957, whites protested the admission of 9 black students to Little Rock's Central High, and Eisenhower had to call out the 101st Airborne Division to protect the black students. (Worth reading: Melba Pattillo Beals' "Warriors Don't Cry." She recalls white students pushing her down the stairwell, throwing eggs, and on one occasion, trying to throw battery acid in her eyes.)

What's happening today is light years removed from 1957. No one is rioting in the streets or throwing eggs or in need of protection from the Army. Instead, whites actually support a black superintendent, while some blacks oppose him because he has cut the number of jobs. This doesn't strike me as a genuine "racial conflict." Instead, as Jay Greene points out, it looks more like patronage vs. education:

Jay P. Greene, head of the department of education reform at the University of Arkansas, said in an interview that Little Rock’s scores had been improving, like scores around the state, though pushing them up in a troubled urban district “itself is an achievement.”

* * *

He [the superintendent] is “a person who doesn’t identify with black people at all,” said John Walker, a Little Rock civil rights lawyer who represents black students in the court case, which he has appealed. “The only thing he stands for is putting black people down.”

Though many whites hail the cuts in administration — a legislative study found it “terribly bloated,” a lawmaker said — Ms. Mitchell, the board president, said of them angrily: “African-American employees have lost $918,000,” and she enumerated positions lost or downgraded. Many whites laud the closing of the three schools with low attendance.

Dr. Greene, of the University of Arkansas, said he feared that the dispute was really about patronage, not educational quality. “I think it would be hard to make strong criticisms of the superintendent on educational grounds,” he said.

To be fair, it's not just the New York Times: As can be seen in the quotes above, a few Little Rock residents are trying to stir up racial tension. But when a black superintendent cuts a few unnecessary jobs from a "bloated" administration -- presumably so that resources can be focused on students rather than bureaucrats -- it doesn't seem fair for anyone to suggest that he stands for "putting black people down." Those sorts of criticisms should have been treated with more skepticism by the New York Times. Instead, the Times framed the entire story as an example of "racial conflict" akin to 1957.

Laptops for Students

Sunday, May 06, 2007

More Good Albums

More good albums that I've gotten in the past year or so:

1. The Corrs' "Home." I've like the Corrs ever since their first album came out in 1995, but most of their albums in the intervening years have sounded too much like generic pop music to me. With this album, they finally return to their Irish roots, with a bunch of traditional Irish songs. I think this is my favorite Corrs album now.

2. Sting's "Songs of the Labyrinth. This is an unusual album for Sting: He's singing songs by the English composer John Dowland, accompanied by lute. I admit that Sting's voice, while fairly good for a pop singer, doesn't have nearly the tonal quality and control that one would get from a classical singer, but I've always liked Sting.

3. This isn't really one album: Via Tyler Cowen, a 150-CD set of Bach's complete works. Not all of the works are performed by big names, but at an overall price of just $107.97, this still seems too good to be true. It makes me remember all the many, many hours that I spent as a college freshman in the University of Georgia music library, laboriously copying LPs of Bach onto cassette tapes that I could take home. Now the entire Bach oeuvre is right in my living room. Wow.

Saturday, May 05, 2007

Faculty Surveys

[How often do students in your selected course section engage in the following:]

Developing a personal code of values and ethics?

This one really lets the cat out of the bag. Apparently, we’re supposed to be promoting the latest brand of Education School religion by encouraging students to wed therapy to ethics in the service of whipping up their own ideas of right and wrong. I opt out. I’m a Roman Catholic; I believe that there is a transcendent reality outside of us that we confront and confronts us and that distinctions between right and wrong are objective. C. S. Lewis, at least, is on my side, as are all of the students who have ever complained to me about an “unfair” grade, to whom I never once have said, well, according to my personal values, that’s a “D.” But more to the point, I’m a better secularist than the people who put this questionnaire together; I don’t think that my students’ personal (the survey’s word, not mine) values and ethics are any of my damn business.

Friday, May 04, 2007

24

I've watched it since the beginning of the first season, and it's one of the few TV shows that I take the time to download on ITunes (since cancelling cable about a year ago).

But I agree with the critics who say that 24 is losing steam. One of the main reasons, I suspect, is that it's become too restricted by the convention that everything is happening in real time, over a 24-hour period.

Just because of that one convention, the range of the show has to be very restricted. Nearly everything has to happen within about a 10-mile radius within Los Angeles. Any terrorist that they're looking for has targeted Los Angeles. When Jack needs to talk to ex-President Logan, he's living in Los Angeles (not in Kansas or Pennsylvania), as is Mrs. Logan. When it turns out that the Russian consulate is involved (or the Chinese consulate in a previous season), it's in Los Angeles. Whenever any part of the plot doesn't occur Los Angeles -- such as the plot surrounding the President and Vice-President -- those characters will never cross paths with the CTU folks in Los Angeles, simply because the show doesn't want to spend 6 or 7 episodes having the characters fly cross-country.

Another problem caused by the 24-hour convention is that whenever something bad happens to a character, that character has to make a miraculous recovery in order to keep appearing on the show. This has happened too many times to remember -- the season where Jack was tortured and died before being shocked back to life; Tony Almeida getting shot in the neck, undergoing surgery, and then returning to run CTU; etc. This season has had several of those moments -- Jack stepping off the Chinese plane in the first episode, decrepit and barely functioning, only to turn into the same old Jack by the third episode or so. Morris getting tortured with an electric drill, only to return to his regular job at CTU. Or the worst: President Palmer being in a coma in one episode, and then attending a meeting in the next episode, having had an adrenaline shot.

Besides these two issues, "24" has to assume that lots of other types of events happen far more quickly than they would in real life. Earlier in this season, the Vice-President and President were in a standoff as to whether the President was capable of resuming his duties. They decided to ask the Supreme Court. Within about an hour (supposedly), the members of the Supreme Court had been roused out of bed; had agreed to hear the case; had called for briefing to be submitted within the hour (!); and the President's sister (not SG or White House counsel!) had written out a brief on a pad of paper. This is just absurd; none of these events could have happened that quickly. But given the "24-hour" convention, the show didn't want to spend the next 12 episodes watching the characters discuss legal strategies, etc.

The 24-hour convention also leads to an air of ridiculousness, in that the characters never really seem that tired, even though they've all supposedly been working for 20 hours straight. Nothing ever seems to slow down. None of the characters complain about wanting to go home and get some sleep.

All of these problems would be diminished if "24" were changed to represent a 24-day period. If the events were supposedly happening over 24 days, rather than a mere 24 hours, you could have events happening somewhere other than Los Angeles, without having to show all of the travel time. This would greatly expand the possibilities for the characters -- you could have more characters interact with each other, for example, rather than being trapped on the other side of the country. And so forth.

Another recommendation that has nothing to do with the time scale: Lose the melodramatic subplots. I know these have always been around -- Kim getting kidnapped in the middle of the woods; the female head of CTU (forget the name) having an insane daughter; etc. But it's just hard to believe that in the middle of a nuclear crisis, Chloe and Milo would be trying to check Morris's breath to see if he might have had the tiniest sip of alcohol (his behavior was obviously not affected in any way).

Finally, I'm not impressed with the characters this season. Chloe has been declawed, and mostly just mopes around. Wayne Palmer has the appearance of a junior staffer, not a President (a complete contrast to his late brother).

Abstract: Apparent ignorance of more than a century of economic history now threatens the competitive constitution of the Internet under the guise of “net neutrality.” Net neutrality is a slogan that stands for the proposition that the Internet and physical means of access to it should be available to all on uniform, non-discriminatory terms. Proponents of net neutrality fear, first, that access to bottlenecks, such as the “last mile” to the home, will be monopolized and second, that the successful monopolist will seek to favor its own vertical services by excluding or disfavoring others. Net neutrality is their answer to these threats. But the architects of the concept of net neutrality have simply resurrected the traditional naïve “common carrier” solution to the threats they fear. By choosing new words to describe a solution discredited by experience, the architects and economic interests supporting net neutrality may mislead themselves and others into repeating a policy error much more likely to harm consumers than to promote competition and innovation.

Net neutrality policies could only be implemented through detailed price regulation, an approach that has often failed, in the past, to improve consumer welfare relative to what might have been expected under an unregulated monopoly. Regulatory agencies often settle into a well-established pattern of subservience to politically influential economic interests. Consumers, would-be entrants and innovators are not likely to be among these influential groups. History thus counsels against adoption of most versions of net neutrality, at least in the absence of refractory monopoly power and strong evidence of anticompetitive behavior - extreme cases justifying dangerous, long shot remedies.

The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the “forward” button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune from any defense of “fair use.” Accordingly, the routine practice of email forwarding would violate principles of common-law copyright.

The issue of whether common-law copyright today protects email expression turns on whether the Federal Copyright Act preempts common-law copyright. The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding. A strong argument exists, however, that the Act does not preempt common-law rights of expression which protect privacy. Federal preemption extends only as far as the Constitution permits. According to the Copyright Clause in the Constitution, federal property rights in expression are limited to rights that forward a utilitarian end. Rights of privacy do not forward a utilitarian end. The Act should therefore be construed as not preempting common-law copyright's protection of privacy. Email forwarding must yield to privacy protection.